Judge Alison Mackenzie, Case Number: 24STCP02675, Date: 2024-11-26 Tentative Ruling

Judge: Alison Mackenzie, Case: 24STCP02675, Date: 2024-11-26 Tentative Ruling

Case Number: 24STCP02675 Hearing Date: November 26, 2024 Dept: 55

NATURE OF PROCEEDINGS: Hearing on Respondent’s Motion to Quash Subpoena to Burbank Fire Department

Respondent’s Motion to Quash denied.

BACKGROUND

Petitioners Nelson Grande and Sylvia Franco filed a Petition for a writ of Mandate against the City of Burbank (“Respondent”), appealing the Respondent’s administrative decision to deem Petitioners’ dog vicious and order him to be euthanized.

On October 16, 2024, Petitioners issued a subpoena to the Burbank Fire Department seeking an unredacted copy of the incident report and the appearance by the custodian of records at trial.

The hearing began on October 18, 2024, and was continued to November 26, 2025.

Respondent filed a motion to quash the subpoena. Petitioners filed an opposition.

LEGAL STANDARD

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with subpoenas.” Lee v. Swansboro Country Property Owners Assn. (2007) 151 Cal.App.4th 575, 582-83. A motion to quash a subpoena or deposition notice is used to strike, modify, or impose conditions on a subpoena or notice that is procedurally or substantively defective. Such a motion may be made by any party to the action. Code Civ. Proc., 1987.1, subd. (b)(1).

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc. § 2017.010; Schnabel v. Superior Court. (1993) 5 Cal.4th 704, 711. When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999. The protections cover both a person’s personal and financial matters. Ibid. The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. Ibid. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.

ANALYSIS

I. Timeliness of Subpoena

Respondents argue that the subpoena is not timely because it was served on October 16, 2024, two days before the time required for attendance. Aguado Decl., ¶ 9.

Code of Civil Procedure section 1987, subdivision (a), provides in relevant part that “[t]the service [of a subpoena] shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance.” “It is established that a subpoena duces tecum may be served on a party to compel production of documents at trial.” Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1224. A party must comply with subpoena duces tecum to produce documents at trial, even if issued on the eve of trial. Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 810–81. Section 1987, subdivision (b) allows, as an alternative to serving a subpoena, a party to serve written notice upon the opposing attorney at least ten days before the time required for attendance. If the notice requests the production of documents, it must be served at least twenty days before the time required for attendance. Code Civ. Proc., § 1987, subd. (c).

Here, Petitioners served a subpoena on the Burbank Fire Department, not simply a written notice to Respondent’s counsel. The time requirements apply only to serving written notice rather than a subpoena. Therefore, Petitioners only needed to provide reasonable time to prepare the documents and travel to the hearing. The Court finds that they did so.

II. Notice to Consumer

Respondents additionally argue that Petitioners failed to meet the consumer notice requirements of Code of Civil Procedure section 1985.3.

A subpoena for personal records must be preceded by service of a Notice to Consumer 10 days before the date specified for production and 5 days prior to the service of the subpoena to a custodian of records. Code Civ. Proc. § 1985.3(b)(2) and (3). The requirements of section 1985.3 apply to subpoenas for records that contain medical information made to public entities. Code Civ. Proc. § 1985.4; see Code Civ. Proc. § 1798.3(a) (defining “personal information” as including medical history).

Here, Petitioner provides the notice to the consumer on October 10, 2024. Amended Declaration of Jill R. Ryther ¶ 9. The initial trial date was scheduled for October 18, 2024. Therefore, Petitioners failed to meet the technical requirements of Code of Civil Procedure section 1985.83.

However, Code of Civil Procedure section 1985.3, subdivision (h) provides, “Upon good cause shown and provided that the rights of witnesses and consumers are preserved, a subpoenaing party shall be entitled to obtain an order shortening the time for service of a subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence by the subpoenaing party has been shown.”

First, the Court finds that the accelerated timeframe of this proceeding constitutes good cause. In Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 444 (S.A.), the court considered the application of section 1985.8 to a contested petition for appointment of a conservator. It held that the “technical noncompliance with Code of Civil Procedure section 1985.3’s 10-day notice requirement did not render the production improper in [such a] proceeding…” By statute, the trial in a contested conservator appointment proceeding must commence within 10 days after the proposed conservatee demands it and may only be continued for 15 days. Welfare and Institutions Code section 5350 subd. (d). The court held “[t]he Legislature could not have intended the 10-day notice-to-consumer provision to apply in such a proceeding because trial must commence within 10 days after the proposed conservatee demands it and the court may only continue trial for 15 days upon request of the proposed conservatee.” Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 444.

Here, there is a similarly accelerated time frame. Food and Agriculture Code section 31621 provides that “the hearing shall be held promptly within no less than five working days nor more than 10 working days after service of notice upon the owner or keeper of the dog.” These time restrictions also apply to the appeal of the initial hearing. Food & Agr. Code, § 31622, subd. (b). (“The hearing shall be conducted … within the time periods set forth in Section 31621 and subdivision (a).”). While outside circumstances necessitated the Court to continue the hearing, it would have been impossible to comply with both the accelerated hearing schedule and the consumer notice requirements.

Second, the Court finds that the rights of witnesses and consumers are preserved. “[Code of Civil Procedure section 1985.3] does not create a special privilege as to [personal] records, but merely creates a procedure under which the consumer will be apprised that a litigant is seeking discovery of his personal records, and will be given an opportunity to make a motion to quash the proposed subpoena.” Sasson v. Katash (1983) 146 Cal.App.3d 119, 124. Here, Ms. Drissi was provided notice, and the Respondent contested the subpoena in the instant motion.

Finally, the Court finds that Petitioners have demonstrated due diligence in subpoenaing the report and providing the notice to Ms. Drissi. On October 8, 2024, upon receiving the case file containing the redacted report and missing photos shown at the administrative hearing, Petitioners’ counsel promptly emailed Respondents’ counsel seeking the additional photos and unredacted copies of the report. Ryther Decl., ¶¶ 5-6. When this failed, Petitioners served a subpoena on the Burbank Fire Department October 10, 2024. Id. ¶7. When informed by Respondents that the Notice to Consumer was required, Petitioners promptly filed the notice. Id. ¶¶ 9-10.

Accordingly, the Court waives the ten-day notice requirement.

III. Discovery

Respondent argues that the subpoena is invalid because the Court did not authorize discovery in this matter.

This proceeding is a limited civil case under Food and Agriculture Code sections 31621-31622. Food & Agr. Code, § 31621 (“A proceeding under this section is a limited civil case.”); Food & Agr. Code, § 31622, subd. (b) (“The court hearing the appeal shall conduct a hearing de novo, without a jury, and … in the same manner … set forth in Section 31621 and subdivision (a).” Id., subd. (b). Limited civil cases have streamlined discovery rules, which provide “[a]ny party may serve on any person a deposition subpoena duces tecum requiring the person served to mail copies of documents, books, or records to the party’s counsel….” Code Civ. Proc., § 94, subd. (c). Food and Agriculture Code section 31622, (b) permits the court to limit discovery further but does not automatically do so. Therefore, the Court did not need to authorize discovery before Petitioners issued subpoenas.

More importantly, there is a distinction between deposition subpoenas, which are issued as part of discovery, and trial subpoenas, compelling production of evidence at trial. See Terry v. SLICO (2009) 175 Cal.App.4th 352, 356 (analyzing the different requirements for a trial and deposition subpoenas). Parties in limited civil cases may subpoena witnesses to testify at trial, just as they would in an unlimited civil case. See Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 849 (noting “[Code of Civil Procedure] section 98’s limited exception to the hearsay rule is predicated on the party or parties against whom a sworn statement is offered having an opportunity to examine the maker of the statement under oath. Section 98(a) thus requires the provision of an address within 150 miles of the place of trial at which the affiant can be lawfully served with a form of process designed to secure his or her appearance at trial, at which time the affiant can be called as a witness.”). Accordingly, a subpoena to produce documents at trial is valid in a Food and Agriculture Code section 31622 proceeding.

IV. Relevance

Next, Defendants argue that the redacted information is not relevant because there are multiple photographs depicting Ms. Drissi’s injuries, and she will be present at trial. However, Petitioners submit that they are interested in the requested report, not for evidence disproving Ms. Drissi’s injuries but to show that she was under the influence of drugs, alcohol, or both at the time of the incident. Opposition at p. 2: 10-11.

Although the context is very different, People v. Wright (1985) 39 Cal.3d 576, 583 (Wright) is instructive. In Wright, the Court held that evidence that a murder victim was under the influence of heroin at the time of death was relevant, where Defendant’s sole theory to support an acquittal was that he acted in self-defense in response to the victim’s irrational behavior.

While Wright is a criminal case concerning self-defense and the admissibility of evidence, it is nevertheless instructive in determining whether evidence that a dog-bite victim was under the influence is discoverable. Like the Defendant in Wright, Petitioners seek to admit evidence of the victim’s intoxication to show that she behaved irrationally and provoked the dog. Therefore, the Court finds it relevant whether Ms. Drissi was under the influence of alcohol or drugs at the time of the incident.

The Court must balance Ms. Drissi’s right to privacy against Petitioners right to obtain relevant evidence. Therefore, insofar as the report contains information concerning Ms. Drissi’s possible intoxication, Respondents must produce it in unredacted form. If there is a dispute about whether the report discusses intoxication, the Court will review the unredacted report in camera.

V. HIPPA

Finally, Respondents object to the subpoena based on the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §1320d. et seq. (HIPAA). This argument is without merit. HIPAA expressly permits disclosure of personal health information in response to a subpoena when the individual is provided notice. 45 C.F.R. § 164.512 (“A covered entity may disclose protected health information in the course of any judicial or administrative proceeding ... [i]n response to a subpoena … if … [t]he covered entity receives satisfactory assurance as described in paragraph (e)(1)(iii) of this section, from the party seeking the information, that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request.”)

As discussed above, Ms. Drissi was provided notice of the subpoena. Accordingly, HIPAA does not prevent the disclosure of the redacted information.

CONCLUSION

Respondent’s Motion to Quash Subpoena of Burbank Fire Department is denied. Burbank Fire Department is to produce the incident report without redacting any information concerning Ms. Drissi’s alleged intoxication on the day of the bite.